At the common law also husbands and wives may be witnesses for or against other parties in all civil cases. i.e. actions and suits relating to debts. contracts, and wrongs which are not crimes. and in all inquiries of a civil nature. But neither call testify for the other in an action to which the other is a party: but either can be compelled by the opposite party to be a witness.. In all cases neither husband nor wife can he compelled to dis close any confidential communication made to him or her by the other spouse during the mar riage. As regards all criminal proceedings in stituted against either husband or wife, the other spouse is neither competent nor can he compelled to he a witness: but where the husband and wife are not the accused. hut are the prosecuting par ties, then. inasmuch as the State is presumed to he the prosecutor, and the husband and wife are not parties. they may he both witnesses, subject to the qualification as to not being bound to dis close confidential communications made by and to each other during marriage. There is an excep tion also to the rule that neither can he a witness against the other in criminal proceedings—viz. where the wife charges her husband with an as sault or other crime of greater degree upon her person. she is in that ease only a competent wit ness against him, for otherwise the crime might go unpunished. 'tloreover, in all proceedings in stituted in consequence of adultery of the hus band or wife. neither of the married parties is competent or can he compelled to he a witness.
(2) As TO TilE PROPERTY OF THE :MARRIED PER SONS. As regards the husband, he not only re mains sole owner of his property, and, subject to the wife's right of dower, can do what he likes with it, but he becomes absolute owner of her personal property of every kind which is capable of being reduced to possession. As will be here after explained, he also becomes a qualified owner of her choses in action (q.v.) and her chattels real. The legal title of the wife's real estate remains in the wife, hut she cannot convey it without the hus band joining in the by fine an 1 re covery. and the rents. issues, and profits of her real estate belong absolutely to her hus band. Owing to the common-law rule that the husband is entitled to the services of the wife, he becomes entitled to her earnings acquired by ren dering service to others. It will thus he seen that during the enverture the wife cannot, at common law. acquire any personal property, and her title to real property acquired before or after her marriage is subject to the rights of the hus band, as stated. But as regards the wife the case is different. The old rule as to the wife's personal property becoming the husband's abso lutely after marriage suffered qualification when such property consisted not of money or chattels, but of what are called chattels real. such as leases and mortgages. (See CnsTress.) In such a ease they become so far the property of the husband that he can sell them during his life, but he cannot bequeath them by will: and on his death they remain hers, while on her death they become, his. Again, where the wife's per sonal estate before marriage consists of mere rights of action, or debts due to her, they become so far his that he can at any time sue for them. and so reduce them into possession, and make them his own absolutely: but he cannot bequeath them by will, and if he does not sue for them in his lifetime they survive to the wife after his death. As regard-, the wife's real estate—i.e. her
lands and houses held in freehold—the husband does not acquire any legal interest in the title by the marriage, but, as has been pointed out, he acquires the right, to the rents. issues, and profits, and consequently the right to dispose of the real estate during the enverture; and. if the wife hear him a living child, upon her death he beeomes entitled to a life interest in her real estate, known as tenancy by the curtest' (q.v.). Upon marriage the wife also acquires an inelmate right to dower in real estate of which the hus`,ammd may be seized or which he may thereafter acquire— that is. a life estate or interest in one-third of all such real estate. This right hammy; complete only upon death of the husband before the wife. but it cannot be impaired by any act of the husband thee coverture or by the wife her -elf except by joining with her husband in a conveyance by fine and recovery. (See Dowtas) All real estate conveyed to husband and wife to7ether, unless otherwise defined by the in strument of conveyance, is deemed to be an es tate known as an estate by the entirety. Its pe culiarity is that while the husband is entitled to the rents, issue, and profits during eoverture, neither can convey the title without the other, and the survivor becomes entitled to the property absolutely. On the death of one of the parties to the marriage the property is disposed of as ((Mows: if the husband dies his will may, sub ject to the wife's right of loner. dispose of his whole property to strangers irrespective of the wife. Rut there are some things his will cannot take away from her, its. for example. her leases, chosen in action not, reduced to possession, and her real estate. To these may lie added her paraphernalia, so called. which consists of her pers(mal apparel and jewels; but even IIlay be taken by her husband's creditors if there be a deficiency of assets. When the wife dies before the husband lie becomes entitled to all her personal estate. of 0 hatever descrip tion, even though she leave children ,of the mar riage; and it must, be recollected t fiat she can at the common law, generally speaking. make no will which has any effect if the husband chooses to repudiate it. The wife's real estate passes to her heirs sinless a child has been born of the marriage. in which case the husband is entitled to curies' in the entire estate. The English courts of chancery, by application of the doctrine of uses and trusts 1q.v.I. mitigated to some ex tent the harshness of the common-law rules re lating to married women. By an ante-nuptial agreement between the parties to the marriage, sometimes called a marriage settlement. not only all the property she may have hail before mar riage, but property to which she may afterwards be entitled. may lie given to trustees to hold for her separate use. The agreement may give her a practically unlimited right over the property thus settled upon her whieh equity would enforce. and she may thus receive regularly the Meanie of the trust and use of it, for her own purposes. She may bind her separate estate by vont met, and even dispose of it by will. Courts of equity will also in a proper ease enforce agreements made between husband and wife. and in certain eases will enforce a conveyance made by the hosliand to the wife when made for the purpose of pro viding for the wife. The various rights with reference to separate property thus created and enforced by courts of equity are known as mar ried women's separate estates.